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LOBBYING in NEW YORK: Promoting Transparency and Protecting Free Speech

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LOBBYING in NEW YORK: Promoting Transparency and Protecting Free Speech LOBBYING IN NEW YORK: Promoting Transparency and Protecting Free Speech Presented by the Center for New York City Law at New York Law School and the New York State Joint Commission on Public Ethics SEMINAR PROGRAM AND AGENDA October 25, 2018 New York Law School Table of Contents Agenda ......................................................................................................................................................... 2 Plenary session Lobbying and the Petition Clause .......................................................................................................... 4 The Anxiety of Influence: The Evolving Regulation of Lobbying ...........................................................80 Panel One The Intersection of Lobbying and the First Amendment .......................................................................... 132 N.Y. Civil Liberties Union v. Grandeau ................................................................................................133 United States v. Harriss ....................................................................................................................... 141 Advisory Opinion No. 16-01 .................................................................................................................151 Panel Two Key Highlights of JCOPE's Comprehensive Lobbying Regulations and New Reporting Requirements............................................................................................................161 Lobbying in NYS an Overview................................................................................................................162 Accessing the New JCOPE Lobbying Application..................................................................................183 Biographies...................................................................................................................................................189 1 AGENDA 1:30 – 2:00 Event Check-in 2:00 – 2:50pm I Plenary session (50 minutes) Introduction by Dean Anthony W. Crowell and Professor Ross Sandler Professor Maggie McKinley – Assistant Professor of Law, University of Pennsylvania Law School Professor Richard Briffault – Joseph P. Chamberlain Professor of Legislation, Columbia Law School Q&A BREAK 2:55 – 3:45pm II. First panel (50 minutes): The Intersection of Lobbying and the First Amendment Moderated by Seth Agata, JCOPE Executive Director Panelists: Jeremy Creelan, Jenner & Block Debbie Greenberger, Emery Celli Brinckerhoff and Abady, LLP Arthur Eisenberg, Legal Director of the New York Civil Liberties Union Q&A BREAK 3:55 – 4:45pm III. Second panel (50 minutes): Key Highlights of JCOPE’S Comprehensive Lobbying Regulations and New Reporting Requirements Panelists: Carol Quinn, JCOPE Deputy Director of Lobbying Guidance Q&A 2 PLENARY SESSION 3 University of Pennsylvania Law School Penn Law: Legal Scholarship Repository Faculty Scholarship 2016 Lobbying and the Petition Clause Maggie McKinley University of Pennsylvania Law School Follow this and additional works at: http://scholarship.law.upenn.edu/faculty_scholarship Part of the American Politics Commons, Constitutional Law Commons, First Amendment Commons, Law and Politics Commons, Law and Society Commons, Legal History Commons, Legislation Commons, Policy Design, Analysis, and Evaluation Commons, Public Affairs Commons, Public Law and Legal Theory Commons, and the Supreme Court of the United States Commons Recommended Citation McKinley, Maggie, "Lobbying and the Petition Clause" (2016). Faculty Scholarship. 1891. http://scholarship.law.upenn.edu/faculty_scholarship/1891 This Article is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Penn Law: Legal Scholarship Repository. For more information, please contact [email protected]. 4 Stanford Law Review Volume 68 May 2016 ARTICLE Lobbying and the Petition Clause Maggie McKinley* Abstract. Contrary to popular opinion, the Supreme Court has not yet resolved whether lobbying is constitutionally protected. Belying this fact, courts, Congress, and scholars mistakenly assume that lobbying is protected under the Petition Clause. Because scholars have shared the mistaken assumption that the Petition Clause protects the practice of “lobbying,” no research to date has looked closely at the Petition Clause doctrine and the history of petitioning in relation to lobbying. In a recent opinion addressing petitioning in another context, the Supreme Court unearthed the long history behind the right to petition and argued for the importance of this history for future interpretation of the Petition Clause. Following the Supreme Court’s direction, this Article examines the implications of the history of petitioning for lobbying and, drawing from recent empirical research on lobbying, argues that the way Congress engages with the public through our current lobbying system actually violates the right to petition. At the Founding, and for much of this Nation’s history, the right to petition protected a formal, transparent platform for individual—and, in particular, minority—voices to participate in the lawmaking process. Without regard to the number of signers or the political power of the petitioner, petitions received equal process and consideration. This platform allowed both the enfranchised and unenfranchised to gain access to lawmakers on equal footing. Women, African Americans, and Native Americans all engaged in petitioning activity, and Congress attended to each equally. Moving beyond ahistorical, decontextualized interpretations of the Petition Clause, this Article posits that our current lobbying system—wherein access and procedure are * (Fond du Lac Band, Lake Superior Ojibwe) Climenko Fellow and Lecturer on Law, Harvard Law School. For close, critical reads and sharp insights, my thanks to Floyd Abrams, Tabatha Abu El-Haj, Jack Balkin, Rabia Belt, Richard Briffault, Dan Carpenter, Megan Corrarino, Dan Deacon, Lee Drutman, Sandro Duranti, Einer Elhauge, Chai Feldblum, Noah Feldman, Charles Fried, Abbe Gluck, Lani Guinier, Rick Hasen, Jamey Harris, Olatunde Johnson, Heidi Kitrosser, Michael Klarman, Larry Norden, Vic Nourse, Michael McConnell, Martha Minow, Ellie Ochs, Tamara Piety, Christina Duffy Ponsa, Trevor Potter, David Pozen, Justin Richland, Jane Schacter, Wenona Singel, Joe Singer, Merav Shohet, Gerald Torres, Adrian Vermeule, and Andrew Yaphe. Workshops at Stanford, Yale, Harvard, AALS, and the Brennan Center helped to polish arguments and to build community around this project. Kerry Richards provided excellent research assistance. Chi-miigwech, Ned Blackhawk, g’zaagi’in. Belying this wealth of support, mistakes remain and remain my own. 5 Lobbying and the Petition Clause 68 STAN L. REV. 1131 (2016) informal, opaque, and based on political power—actually violates the right to petition, which provided access and formal procedure without respect to the political power of the petitioner. The history of petitioning teaches that affording access to the lawmaking process on the basis of an individual’s political power makes as little sense as affording access to courts on such a basis. This history suggests the need for revisiting the Petition Clause doctrine. On the one hand, it argues for a stronger petition right, especially a right to consideration and response. On the other hand, it suggests a narrowed petition right that protects only practices that correspond with the traditional practice of petitioning. Fundamentally, this Article demonstrates that a contextualized understanding of the Petition Clause, grounded in an accurate historical frame, requires comprehensive reform of our lobbying system and a formalization of the petition process in order to preserve our republican form of government. Table of Contents Table of Contents ............................................................................................................................ 1132 Introduction ....................................................................................................................................... 1133 I. Contextualizing the Petition Clause ........................................................................... 1142 A. Contextualizing Petitioning ................................................................................... 1142 B. Contextualizing the Text ........................................................................................ 1147 C. Contextualizing Lobbying ...................................................................................... 1154 II. The “Decontextualized” Petition Clause ................................................................... 1156 A. Our Lobbying Regulatory Framework ............................................................ 1156 B. Our Muddled Petition Clause Doctrine ........................................................... 1162 1. Origins ....................................................................................................................... 1165 2. Applying the clause to “lobbying” .............................................................. 1168 3. Expanding the clause to courts and the executive ............................ 1170 4. Conflating the clause into speech ............................................................... 1174 5. An historic revival .............................................................................................
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